KOALA SHIPPING & TRADING v. M.V. NOPAL EXPLORER

May 15, 1984

In the Matter of the Complaint of Koala Shipping & Trading Inc., Plaintiff, As Owner of the NOPAL EXPLORER for Exoneration from or Limitation of Liability; GROENEVELD COMPANY, INC., and CARIBMAR FORWARDING, Plaintiffs, against M.V. NOPAL EXPLORER, etc., in rem, KOALA SHIPPING & TRADING, INC., and CONCORDE/NOPAL LINE, in personam, Defendants.

The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

Concorde/Nopal Line ("Concorde") seeks by Order to Show Cause an order directing Koala Shipping & Trading Inc. ("Koala") to produce in either Bremen, Germany or New York, New York on May 16, 1984, its President, Mr. Harold Aumann, Sr., its managing agent, Mr. H. Theilemann, and its insurance agent, Mr. Ludwig Kruse, for the purpose of being deposed. Furthermore, Concorde seeks an order directing Koala to produce all documents relevant to (a) the sale of the vessel Nopal Explorer to Lorain Investments Corporation ("Lorain"), (b) the guarantee of the mortgage on the ship, and, (c) all documents concerning the repair of the ship.
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Submissions on the motion were made by both parties and a short hearing was held on May 10, 1984, at which time additional submissions were made. At the hearing, I resolved Concorde's application as it concerned the depositions. Koala had conceded in its opposition papers and at the hearing that both Aumann and Theilemann would be available to be deposed in Bremen. Indeed, Theilemann's deposition began in November and will be continued. Affidavit of John D. Kimball at 1. Concorde also sought, however, to have Koala ordered to produce its insurance agent, Kruse. As I noted, Kruse is not an employee of Koala and Koala is therefore in no position to compel his attendance. Accordingly, Concorde's application for an order directing Koala to produce Kruse is denied. I turn to Concorde's application for an order directing the production of certain documents.

By memorandum endorsement dated November 29, 1983, I consolidated the limitation of liability action In re Koala Shipping & Trading Inc., No. 83 Civ. 6226, then before Judge Goettel, with Groenveld Company, Inc. v. M.V. Nopal Explorer, No. 83 Civ. 5517, which was before me. I will not repeat the facts or the complicated procedural history of this case and will assume familiarity with my prior opinions.

I note, however, that after the two actions were consolidated, Koala moved to stay the action pending arbitration. By memorandum and order dated February 2, 1984, I granted Koala's motion but only insofar as the action related to the relative liability of Koala and Concorde for the capsizing of the Nopal Explorer. Thus, the arbitration between Concorde and Koala is proceeding simultaneously with the limitation of liability proceeding pending before me. A three-member panel has been formed and the first hearing was held on May 7, 1984.

In support of its application for a discovery order, Concorde asserts that it received information on April 30, 1984, that related to the sale of the vessel Nopal Explorer, a defendant in rem in this action. In September 1983, the Nopal Explorer was taken under tow to Germany allegedly for repairs. However, when she arrived in Europe, the Nopal Explorer was arrested by its mortgagee. Koala had defaulted on its mortgage payments. The Nopal Explorer allegedly was sold on November 23, 1983 in Rotterdam in a judicial sale to Lorain for $1,250,000. Concorde's position is that the sale was "orchestrated" in order to effect the sheltering of assets from Concorde and the other cargo claimants in the limitation of liability action. Specifically, Corcorde states that it believes that the buyer of the ship is related to Koala and that the sale of the vessel was a sham.

Concorde sought to have a subpoena duces tecum issued and a discovery order executed by the panel of arbitrators. The panel convened on May 7,1984, and stated that it was "unsure" of its power and suggested to Concorde that it present the same application to me. Concorde has done so. Although the panel clearly has the power to "summon in writing any person to attend before them . . . and in a proper case to bring with him . . . any book, record, document, or paper which may be deemed material as evidence in the case," see 9 U.S.C. § 7, I see no purpose in sending Concorde back to the panel for the relief it seeks. The scope of Concorde's discovery is relevant to the issues before the arbitration panel request, and moreover, may in fact be even more significant to the issues involved in the case before me.

Koala opposes Concorde on the grounds that (1) the arbitrators do not have the power to order the discovery that has been requested because it concerns nonarbitrable disputes, (2) the court can only grant discovery which is relevant to the subject matter of the case before it, (3) Judge Goettel's order dated November 17, 1983 denying "a restraint in this proceeding upon the shipowner from disposing of any of its assets, or discovery in this action concerning the location of the shipowner's assets," Affidavit of John D. Kimball, Exh. A, is the law of the case, (4) Concorde has failed to show that it is likely to succeed in Rotterdam if it seeks to attack the judicial sale, and (5) there was no fraud involved in the sale of the Nopal Explorer. I turn to Koala's arguments seriatim.

First, I have already stated that 9 U.S.C. § 7 authorizes arbitrators to subpoena individuals and documents and that in this instance, the material sought is relevant to the issues before the arbitrators. In the future, the panel should exercise its power. Second, the discovery that is requested does not concern matters outside of the scope of the action before me. Indeed, the rights of the cargo claimants are implicated directly by the propriety of the judicial sale of the vessel in Rotterdam.

Third, Judge Goettel's order does not constitute law of the case. As Judge Goettel recognized, the facts were not fully developed at the time that the motion was before him. The relief sought in that motion was to lift a limitation injunction to permit the claimants to sue the shipowner Koala wherever the hull insurer was susceptible to jurisdiction and to permit them to intervene in the judicial sale that was to take place in Rotterdam. It appears that Concorde has recently come into possession of additional information since the sale has taken place that was not before Judge Goettel. Moreover, even assuming that the facts are identical, Judge Goettel's ruling is not "law of the case." See In re Agent Orange Product Liability Litigation, 733 F.2d 10, 12-13 (2d Cir. 1984) (it is well established that pretrial interlocutory orders and rulings are subject to modification at any time and may be modified to the same extent by the judge to whom the case is reassigned).

Fourth, Koala argues that Concorde has not shown that "under the law of [the Netherlands] it has even a prima facie case of fraud." Affidavit of John D. Kimball at 8. It is true that Concorde states that if the requested discovery reveals that the judicial sale was a fraud, then the "cargo claimants must take immediate steps to petition the court in Rotterdam to invalidate the sale on the ground that it was fraudulent." Affidavit of Lawrence J. Bowles at 10. The relevant inquiry, however, is not whether, if Concorde chooses to utilize the discovery it obtains to proceed in Rotterdam, it will succeed on the merits. Generally, the scope of permissible discovery is broad; "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." Fed. R. Civ. P. 26(b)(1) (emphasis supplied). The discovery may relate to the claim or defense of Concorde or "to the claim or defense of any other party. . . ." Id. "[T]he existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter" are all subject to discovery under the federal rules. Id.

In a limitation of liability proceeding such as Koala has commenced in this court, the owner's liability for the loss of cargo "shall not . . . exceed the amount or value of the interest of such owner in such vessel and her freight then pending." 46 U.S.C. § 183. The value of the vessel is to be determined by deducting the cost of repairs, if they are not excessive, from the pre-accident value of the vessel. In re Bloomfield Steamship Co., 298 F. Supp. 1239, 1248 (S.D.N.Y. 1969), aff'd, 422 F.2d 728, 735 (2d Cir. 1970). Because Koala defaulted on the mortgage payments and the Nopal Explorer was sold in its damaged condition at a judicial sale to the sole bidder, the "value of the vessel" may be subject to debate. Thus, it is apparent that the potential for recovery by the cargo claimants may be adversely impacted by the judicial sale given the nature of a limitation of liability proceeding. Furthermore, Koala's assets are not extensive; it allegedly owned only one ship -- the Nopal Explorer. In addition, Koala's liability has already been determined to be in excess of the amount deposited in the limitation fund ($567,000). See Affidavit of Raymond P. Hayden at 2. Thus, there arguably would be no other assets to attach or arrest.

Fifth, Koala's claim that there is no fraud is an argument subsumed within its fourth argument. I will address it no further as it is also frivolous.

Accordingly, Koala and its President, Harold Aumann and its managing agent, H. Theilemann are ordered to appear in connection with the depositions scheduled for May 16, 1984, in Bremen and to bring with them the following records and documents pertaining ...

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